Pamela Fox v. County of Tulare , 672 F. App'x 767 ( 2017 )

FILED
NOT FOR PUBLICATION
JAN 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMELA J. FOX, on behalf of herself and No. 14-17039
as next friend to C.M.R., a minor,
D.C. No.
Plaintiff-Appellant, 1:11-cv-00520-AWI-SMS
v.
MEMORANDUM*
COUNTY OF TULARE; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted December 14, 2016
San Francisco, California
Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,** District Judge.
Plaintiff Pamela Fox, on behalf of herself and her minor child C.M.R.,
appeals the district court’s grant of summary judgment in favor of Tulare County
and various County employees – social workers, a former Sheriff’s Deputy, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
County counsel – dismissing Fox’s 42 U.S.C. §§ 1983 and 1985 claims. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
1. The district court correctly ruled that there was no factual dispute
about a state-created danger. The Fourteenth Amendment Due Process Clause
guarantees a right to be free from a state-created danger, see Patel v. Kent Sch.
Dist., 648 F.3d 965, 971–72 (9th Cir. 2011), but there is no evidence in the record
that any Defendant exposed C.M.R. to a danger that she otherwise would not have
faced.
2. The district court correctly ruled that there was no factual dispute
related to a substantive due process right to care, custody, companionship, and
management. Such a right is clearly established, see Lassiter v. Dep’t of Soc.
Servs., 452 U.S. 18, 27 (1981), but there is no evidence in the record that any
Defendant interfered with the right either to custody or companionship.
3. The district court correctly concluded that there was no specific
procedural due process right to access evidence. Without an established right, there
can be no violation.
4. The district court correctly found that there was no evidence of a
conspiracy to discriminate against Fox on the basis of her gender. Section 1985(2)
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prohibits a conspiracy to deny equal protection of the laws, but there is no evidence
in the record that any Defendant conspired to discriminate on the basis of gender.
5. Finally, the County of Tulare is not liable for the actions of its
employees. A municipality may be liable under § 1983 when an action taken
pursuant to an official policy causes a constitutional harm. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978). There is no evidence in the record establishing
that the County maintained a policy or practice that harmed Fox or C.M.R., nor did
Fox show that an official with final policy-making authority either caused the
alleged harm or ratified a subordinate’s action that caused the harm.
AFFIRMED.
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